Jbart said:
My son was married onJune 20, 2000 his partner was pregnant. She moved in with him for about six weeks, and them prior to delivery she moved out, she has not returned since. She gives all kinds of reasons for staying at home with her family. What does my son need to do in order to start annulment procedings? He wants to be active part in his childs life,as do we as grandparents, but his wife is finding all kinds of excuses for us not to see or spend time with the baby. I think she does not want to be in this marriage, but doesn't want to accept the reality that she has made a mistake. This is not her first child out of wedlock. I am looking for statue of limitation and directions on how to proceed. We life in California.
My response:
If the married couple do not meet any of the following, a standard divorce proceeding will be necessary:
Parties and Statute of Limitations
Marriages voidable under Ca Fam § 2210: An action to adjudge a voidable marriage a nullity is maintainable by either party to the marriage, or by third persons, as follows:
(1) On ground of minority: A petition for nullity of a voidable marriage based on minority may be brought by:
· The party who was under the age of consent within four years after reaching the age of consent (Ca Fam § 2211(a)(1)); or
· A parent, guardian, conservator or other person having charge of the minor at any time before the married minor reaches the age of consent (Ca Fam § 2211(a)(2)).
(2) On ground of prior existing marriage: A petition to annul a voidable marriage based on a prior existing marriage (former spouse absent for five years and not known to be living or generally reputed to be dead, may be brought by:
· Either party during the life of the other (Ca Fam § 2211(b)(1)); or
· The former husband or wife (Ca Fam § 2211(b)(2)).
(3) On ground of "unsound mind": A nullity petition alleging voidability on the basis of a party's "unsound mind" may be brought by the "injured party," or by a relative or conservator of the party of unsound mind, at any time before the death of either party. [Ca Fam § 2211(c)]
(4) On ground of fraud: A petition seeking a judgment of nullity on the ground of fraud may be brought only by the party whose consent was obtained by fraud and within four years after discovery of the facts constituting the fraud. [Ca Fam § 2211(d); see Marriage of Goldberg (1994) 22 Cal.App.4th 265, 272-273, 27 Cal.Rptr.2d 298, 302-303--so long as deceived party commenced nullity action within 4-year period, it survives his or her death and may be continued by deceased's personal representative]
(5) On ground of force: An action to annul a voidable marriage on the ground of force may be brought only by the party whose consent was obtained by force and within four years after the marriage. [Ca Fam § 2211(e)]
(6) On ground of physical incapacity: A nullity action based on physical incapacity may be brought only by the "injured party" and within four years after the marriage. [Ca Fam § 2211(f)]
b. Marriages void under Ca Fam §§ 2200/2201: There are no statutory restrictions on standing to challenge or terminate a marriage that is allegedly "void" (incestuous or bigamous under Ca Fam §§ 2200 or 2201(a)(1), nor is there any statutory time limit within which the voidness may be alleged. Indeed, since a void marriage is invalid from its inception, it may be attacked directly by way of a nullity proceeding brought at any time during the life of the parties or collaterally at any time before or after either party's death. [Estate of Karau (1938) 26 Cal.App.2d 606, 80 P.2d 108]
"Void" vs. "Voidable" Marriage
a. Technical distinctions
(1) Void marriage invalid per se: A void marriage (Ca Fam §§ 2200-2201) is invalid and a nullity from its inception. It never legally existed and its invalidity may be shown in any proceeding where the fact of marriage is material (i.e., by direct or collateral attack). [In re Gregorson's Estate (1911) 160 Cal. 21, 116 P 60]
Judgment advisable: Even though a void marriage is technically nonexistent, a judgment of nullity is still advisable: Significantly, the judgment will eliminate doubt as to the parties' marital status (making the fact of invalidity a matter of public record); and will also conclusively determine the parties' "marital" property and support rights.
(2) Voidable marriage valid until annulled: On the other hand, a voidable marriage (Ca Fam § 2210) is valid for all civil purposes between the parties and against the world until adjudged a nullity; i.e., the marriage is invalidated only from the time it is so declared by a court of competent jurisdiction. [In re Gregorson's Estate, supra]
Moreover, with the passage of time, a voidable marriage may, for all practical purposes, become a valid (nonvoidable) marriage . . . because a proceeding to annul a voidable marriage must be commenced within statutorily-prescribed time limits. [Ca Fam § 2211] Once the applicable statutory period expires, a judicial termination of marital status and adjudication of the bundle of rights and responsibilities incident thereto must proceed by an ordinary marriage dissolution.
2. Bases for Void Marriage: There are two grounds upon which a marriage may be adjudged a nullity as "void" (Ca Fam §§ 2200, 2201):
a. Incest: A marriage between parents and children, ancestors and descendants of every degree, brothers and sisters (of the half or whole blood), or uncles and nieces or aunts and nephews is incestuous and void from the beginning, "whether the relationship is legitimate or illegitimate." [Ca Fam § 2200]
b. Bigamy: A subsequent marriage is illegal and void from the beginning if either party has a spouse still living unless the former marriage was dissolved or adjudged a nullity before the date of the subsequent marriage. [Ca Fam § 2201(a)(1)]
Fraud warranting annulment
· Concealment of sterility (Vileta v. Vileta (1942) 53 Cal.App.2d 794, 128 P.2d 376), of existing pregnancy (Hardesty v. Hardesty (1924) 193 Cal. 330, 223 P 951), or of an intent not to terminate a sexual relationship with a "significant other" (Schaub v. Schaub (1945) 71 Cal.App.2d 467, 162 P.2d 966, 972-973) goes to the "very essence" of the marriage relationship and thus is sufficient ground for a judgment of nullity.
· A concealed intent not to live with the other spouse (Handley v. Handley, supra), not to engage in sexual relations with the other spouse (Millar v. Millar (1917) 175 Cal. 797, 167 P 394), or not to have children despite a promise to the contrary (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 255 P.2d 65) supports a judgment of nullity on the ground of fraud.
· Wife, who was induced to marry by Husband's false representations he was an honest, law abiding, respectable and honorable person and that he had a child who was well provided for, was entitled to a judgment of nullity on the ground of fraud where Husband had in fact been convicted of grand theft, was a parole violator and a fugitive from justice, and was guilty of failure to support his children from a prior marriage. [Douglass v. Douglass (1957) 148 Cal.App.2d 867, 307 P.2d 674--H's fraud defeated W's "essential purposes" in entering into marriage relationship]
· A judgment of nullity based on fraud is also warranted where one party's motive in entering the marriage was solely to obtain a green card (to acquire U.S. residency status) and he or she never intended to engage in sexual relations with the other or to meet marital duties. [Marriage of Liu (1987) 197 Cal.App.3d 143, 242 Cal.Rptr. 649]
(b) Compare--insufficient fraud: On the other hand, "the concealment of incontinence, temper, idleness, extravagance, coldness or fortune inadequate to representations cannot be the basis for an annulment." [Marriage of Johnston (1993) 18 Cal.App.4th 499, 501, 22 Cal.Rptr.2d 253, 255 (internal quotes omitted)]
· Thus, a party's false representation he or she owned a particular business (Mayer v. Mayer (1929) 207 Cal. 685, 694-695, 279 P 783) or was a "person of means" (Marshall v. Marshall (1931) 212 Cal. 736, 737-738, 300 P 816, 817) is not the type of "fraud" warranting a judgment of nullity.
· Deceit about one's chastity or moral character is not "vital" to the marital relationship and thus will not justify a judgment of nullity on the basis of fraud. [Barnes v. Barnes (1895) 110 Cal. 418, 421, 42 P 904, 905; but see Douglass v. Douglass (1957) 148 Cal.App.2d 867, 870-871, 307 P.2d 674, 676 (concealed criminal record as sufficient fraud]
· Nor is there sufficient fraud to annul a marriage simply because a party concealed a severe drinking problem (or, presumably, drug addiction), refused to seek employment after contracting the marriage (despite assurances before marriage to the contrary), proved to be a "disappointing" sexual partner, and/or turned from a "polite" and "nice" person before marriage to a "dirty," "unattractive" and disrespectful person after the marriage. A finding of § 2210(d) fraud cannot rest solely on the fact a spouse "turned from a prince into a frog." [Marriage of Johnston, supra, 18 Cal.App.4th at 500-502, 22 Cal.Rptr.2d at 254-255--that "husband turned out to be, in the eyes of his wife, a lazy, unshaven disappointment with a drinking problem" not sufficient grounds for annulment]
e. Force: Either party's consent to the marriage was obtained by "force," unless the coerced party thereafter "freely cohabited with the other" as husband and wife. [Ca Fam § 2210(e); see Marriage of Weintraub (1985) 167 Cal.App.3d 420, 422, 213 Cal.Rptr. 159, 160--W abducted by H and forced to marry him by force, beatings, intimidation and threats to W's and her family's safety]
(1) Threats: Threats inducing consent to marriage may support a judgment of nullity on the ground of force, provided the threats were the sole inducing cause and of sufficient magnitude as to overcome the spouse's free will. [Nicholson v. Nicholson (1917) 174 Cal. 391, 393-394, 163 P 219, 220--threat to involve W as criminal accomplice insufficient where financial straits (among other factors) could just as likely have motivated her consent]
f. Physical incapacity: Either party was "physically incapable" of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be "incurable." [Ca Fam § 2210(f); Stepanek v. Stepanek (1961) 193 Cal.App.2d 760, 762, 14 Cal.Rptr. 793, 794]
IAAL
